Bonner v. . Tier , 14 N.C. 533 ( 1832 )

One Cherry obtained a judgment against the administrator of Andrew Christie, in which the plea of fully administered was found for the defendant. A writ of scire facias issued on this judgment, by which the sheriff was directed to "make known to. . . . . . . heirs or devisees of the said Andrew that," etc. This writ was returned, "not found," and an alias issued in all respects precisely like it, to which there was a similar return. Upon the return of the second writ, judgment by default was entered up, and the lessor or the plaintiff purchased under an execution issuing upon it.

(534) Upon these facts his Honor gave judgment for the plaintiff, and the defendant appealed. The judgment on the scire facias is a nullity for the want of a party defendant. It is true, the heirs need not be named in the process, and frequently it is best not to name them, because if one be omitted, and advantage taken of it, by plea of the other, it may be difficult to get over it; whereas, if the process be general, and the sheriff fail to return all the heirs that, upon suggestion, may be supplied by further process. The defect here does not consist in the omission of the names of the heirs in the scire facias, but that omission runs throughout. Neither the plaintiff has named him, nor the sheriff returned him. So that in no part of the proceedings does it appear who is heir, nor certainly that there is one. It is said that he may be out of the State, and in that case there could not be service; and yet, the plaintiff could have judgment under the fourth section of the Act of 1784. But it must appear who in particular is out of the State, in order that there may be a person before the court. If the plaintiff name the heir, the sheriff may return that that person resides without the State. If the sheriff is commanded to summon the heir generally, and the heir resides here, he cannot return generally that he has summoned the heir, but must say who is heir, and that he has summoned him. And as the return of a foreign residence is only in the place of actual service, the sheriff must in that case say that such an one is heir, and that he resides out of the State. When no heir is known, the University is the owner of the land, and must be brought in.

The cases cited for the plaintiff have no application. There (535) the defendants were irregularly brought in, or proceeded against irregularly. Here no defendant is before the court in any manner, and the judgment is against nobody. It is void, and all proceedings under it.

PER CURIAM. Judgment reversed.

Cited: Fry v. Currie, 91 N.C. 438.